Jurisprudence 1

Jurisprudence is the theory and philosophy of law. jurisprudence - the branch of

philosophy concerned with the law and the principles that lead courts to make the
decisions they do

The English term is based on the Latin word jurisprudentia: juris is

the genitive form of jus meaning "law", and prudentia means "knowledge". The
word is first attested in English in 1628[8], at a time when the word prudence had
the now obsolete meaning of "knowledge of or skill in a matter".

Definition: The science of juridical law; the knowledge of the laws,

customs, and rights of men in a state or community,necessary for the due administr
ation of justice.

History:
Jurisprudence already had this meaning in Ancient Rome, even if at its origins the
discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral
laws and customs verbally transmitted "by father to son"). Praetors established a
workable body of laws by judging whether or not singular cases were capable of
being prosecuted either by the edicta, the annual pronunciation of prosecutable
offense, or in extraordinary situations, additions made to the edicta. A iudex then
would judge a remedy according to the facts of the case.
Their sentences were supposed to be simple interpretations of the traditional
customs, but effectively it was an activity that, apart from formally reconsidering
for each case what precisely was traditionally in the legal habits, soon turned also
to a more equitable interpretation, coherently adapting the law to the newer social
instances. The law was then implemented with new evolutive Institutiones (legal
concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd
century BC by a laical body of prudentes. Admission to this body was conditional
upon proof of competence or experience.
Under the Roman Empire, schools of law were created, and the activity constantly
became more academic. In the age from the early Roman Empire to the 3rd
century, a relevant literature was produced by some notable groups including
the Proculians and Sabinians. The degree of scientific depth of the studies was
unprecedented in ancient times and reached still unrivaled peaks of skill.
After the 3rd century, Juris prudentia became a more bureaucratic activity, with
few notable authors. It was during the Byzantine Empire (5th century) that legal
studies were once again undertaken in depth, and it is from this cultural movement
that Justinian's Corpus Juris Civilis was born.
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Analytical jurisprudence is a legal theory that draws on the resources of
modern analytical philosophy to try to understand the nature of law. Since the
boundaries of analytical philosophy are somewhat vague, it is difficult to say how
far it extends. H. L. A. Hart was probably the most influential writer in the modern
school of analytical jurisprudence, though its history goes back at least toJeremy
Bentham.
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that
legal reasoning is or can be modelled as a mechanical, algorithmic process).
Indeed, it was the analytical jurists who first pointed out that legal formalism is
fundamentally mistaken as a theory of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and

descriptive language when referring to the aspects of legal systems. This was a
philosophical development that rejected natural law's fusing of what law is and
what it ought to be.[15] David Hume famously argued in A Treatise of Human
Nature[1][16] that people invariably slip between describing that the world is a
certain way to saying therefore we ought to conclude on a particular course of
action. But as a matter of pure logic, one cannot conclude that we ought to do
something merely because something is the case. So analysing and clarifying the
way the world is must be treated as a strictly separate question to normative and
evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?";
"What is the law?"; "What is the relationship between law and power/sociology?";
and, "What is the relationship between law and morality?" Legal positivism is the
dominant theory, although there are a growing number of critics, who offer their
own interpretations.
Analytic, or 'clarificatory' jurisprudence is using a neutral point of view and
descriptive language when referring to the aspects of legal systems. This was a
philosophical development that rejected natural law's fusing of what law is and
what it ought to be.[27] David Hume famously argued in A Treatise of Human
Nature[28] that people invariably slip between describing that the world is a certain
way to saying therefore we ought to conclude on a particular course of action. But
as a matter of pure logic, one cannot conclude that we ought to do something
merely because something is the case. So analysing and clarifying the way the
world is must be treated as a strictly separate question to normative and
evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?";
"What is the law?"; "What is the relationship between law and power/sociology?";
and, "What is the relationship between law and morality?" Legal positivism is the
dominant theory, although there are a growing number of critics, who offer their
own interpretations.
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Sociological Jurisprudence In a series of law review articles published between

1905 and 1923, Roscoe Pound of the Harvard Law School criticized the prevailing
assumptions of what he called “mechanical jurisprudence.” He denied that just
legal results would be produced by logical deductions from axiomatic premises
about the laws of economics or the structure of society and pointed out that such
axioms reflected more a judge's individual biases than they did universal truths. In
this criticism, Pound echoed the skepticism of Justice Oliver Wendell Holmes,
especially as expressed in his dissent inLochner v. New York (1905).

In place of this discredited formalism that masked conservative political

prejudices, Pound called for what he termed a “sociological jurisprudence.” Such a
judicial outlook would recognize that law is not an autonomous collection of self‐
contained and self‐referential rules. Instead, the judge would seek enlightenment
from disciplines outside law, including the political and social sciences. Judges
would become more sensitive to the actual impact of legal doctrine. They would
strive for an equitable application of law to reach just results in particular cases.
The “Brandeis brief,” introduced by Louis D. Brandeis in Muller v. Oregon (1908),
exemplified the approach advocated by Pound.
Sociological jurisprudence is often regarded as an early expression of the
movement known as Legal Realism, but there were significant differences between
the two. Realists like Karl Llewellyn, while acknowledging their debt to
sociological jurisprudence, found themselves engaged in mutual criticism with
Pound, who was skeptical of the premises of Realism.

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What is the importance of jurisprudence in law?

Laws are not always absolute, so courts has to interpret their meanings and settle
disputes that a lower court may have about what a law can mean with philosophy
and in theory. If the argument goes to the highest court in the land their findings
are final.

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Precedent

In common law legal systems, a precedent or authority is a legal case

establishing a principle or rule that a court or other judicial body utilizes when
deciding subsequent cases with similar issues or facts.

Precedent that must be applied or followed is known as binding precedent

(alternately mandatory precedent, mandatory or binding authority, etc.). Under the
doctrine of stare decisis, a lower court must honor findings of law made by a
higher court that is within the appeals path of cases the court hears. In state and
federal courts in the United States, jurisdiction is often divided geographically
among local trial courts, several of which fall under the territory of a regional
appeals court. All appellate courts fall under a supreme court. By definition,
decisions of lower courts are not binding on each other or any courts higher in the
system, nor are appeals court decisions binding on each other or on local courts
that fall under a different appeals court. Further, courts must follow their own
proclamations of law made earlier on other cases, and honor rulings made by other
courts in disputes among the parties before them pertaining to the same pattern of
facts or events, unless they have a strong reason to change these rulings.

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to

follow a precedent of that jurisdiction only if it is directly in point. In the
strongest sense, "directly in point" means that: (1) the question resolved in
the precedent case is the same as the question to be resolved in the pending
case, (2) resolution of that question was necessary to the disposition of the
precedent case; (3) the significant facts of the precedent case are also present
in the pending case, and (4) no additional facts appear in the pending case
that might be treated as significant.[1]

In extraordinary circumstances a higher court may overturn or overrule mandatory

precedent, but will often attempt to distinguish the precedent before overturning it,
thereby limiting the scope of the precedent in any event.

Under the U.S. legal system, courts are set up in a sort of hierarchy. At the top is
the United States Supreme Court, and underneath are lower federal courts (the
Circuit Courts of Appeals, federal district courts, and some courts of specialized
jurisdiction, such as bankruptcy courts) and also there are state courts.

On questions as to the meaning of federal law, including the U.S. Constitution, the
U.S. Supreme Court has the final say. So, when the U.S. Supreme Court says, for
example, that the First Amendment applies in a specific way to suits for slander,
then every court is bound by that precedent in its interpretation of the First
Amendment as it applies to suits for slander.

If a lower court judge disagrees with the Supreme Court on what the First
Amendment should mean, he cannot rule however he wants; instead, he must rule
according to the binding precedent. Until the Supreme Court changes its mind (or,
in the case of a federal statute, Congress changes the law), that is what the law
means. Although state courts are not part of the federal system, state courts are also
bound by Supreme Court rulings as to the meaning and scope of federal law.
Lower courts are also bound by precedent (that is, prior decided cases) of higher
courts within their region. Thus, a federal district court that falls within the
geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of
the Third Circuit Court, but not by what was said in the Ninth Circuit, for example.
(The Circuit Courts of Appeals have jurisdiction defined by geography.) The
Circuit Courts of Appeals can interpret the law how they want, so long as there is
no binding Supreme Court precedent. In fact, one of the common reasons the
Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a
conflict among the circuit courts as to the meaning of a federal law.

Persuasive precedent
Main article: Persuasive precedent

Precedent that is not mandatory but which is useful or relevant is known as

persuasive precedent (or persuasive authority or advisory precedent). Persuasive
precedent includes cases decided by lower courts, by peer or higher courts from
other geographic jurisdictions, cases made in other parallel systems (for example,
military courts, administrative courts, indigenous/tribal courts, State courts versus
Federal courts in the United States), and in some exceptional circumstances, cases
of other nations, treaties, world judicial bodies, etc.

In a case of first impression, courts often rely on persuasive precedent from courts
in other jurisdictions that have previously dealt with similar issues. Persuasive
precedent may become binding through the adoption of the persuasive precedent
by a higher court.